Citation Nr: 1524861
Decision Date: 06/10/15 Archive Date: 06/19/15
DOCKET NO. 13-24 988A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUES
1. Entitlement to service connection for fibromyalgia.
2. Entitlement to service connection for sleep apnea.
3. Entitlement to service connection for herpes.
4. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).
5. Entitlement to service connection for erectile dysfunction, to include secondary to acquired psychiatric disorder.
6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for low back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Kitlas, Counsel
INTRODUCTION
The Veteran served on active duty November 1989 to November 1993, to include service in the Southwest Asia theater of operations during the Persian Gulf War.
This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.
The Board acknowledges that the RO has treated the claims of service connection for PTSD and depressive disorder as separate issues. However, in accord with the holding of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has construed the appellate issue as service connection for an acquired psychiatric disorder however diagnosed.
For the reasons detailed below, the Board finds that new and material evidence has been received to reopen the low back claim. However, as addressed in the REMAND portion of the decision below, the Board finds that further development is required regarding the underlying service connection claim, as well as the other appellate claims. Accordingly, these claims are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. Service connection was previously denied for low back pain by a September 1994 rating decision. The Veteran was informed of this decision, including his right to appeal, and did not appeal.
2. The evidence received since the last prior denial of service connection for low back pain was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim.
CONCLUSION OF LAW
New and material evidence having been received; the claim of entitlement to service connection for low back disability is reopened. 38 U.S.C.A.
§§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
The record reflects the Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War period. Under 38 U.S.C.A. § 1117, service connection may be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. See also 38 C.F.R. § 3.317.
For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection.
An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 ; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5) ; see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006).
"Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R.
§ 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b) .
For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4).
Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).
Service connection was previously denied for low back pain by a September 1994 rating decision. The Veteran was informed of this decision, including his right to appeal, and did not appeal. The Board acknowledges that Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). In this case, however, a thorough review of the record does not reflect additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. Therefore, this decision is final. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103.
Despite the finality of a prior decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R.
§ 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Further, the Court has also held that in order to reopen a previously and finally disallowed claim there must be new and material evidence presented since the time that the claim was finally disallowed on any basis, not only since the time that the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273, 285 (1996) (overruled on other grounds).
New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. at 118. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id.
The evidence of record at the time of the last prior denial included the Veteran's service treatment records, which reflect he was treated for complaints of back pain in March 1993 and May 1993, and he indicated on a June 1993 Report of Medical History, completed in conjunction with his expiration of term of service (ETS) examination, that he had experienced recurrent back pain. However, his spine was evaluated as normal on the ETS examination itself.
The September 1994 rating decision denied service connection for a low back pain finding that the in-service treatment was shown to be a temporary condition which resolved with treatment, and no permanent disability was shown at the time of separation.
The evidence received since the last prior denial includes post service medical records which cover a period through 2011. In pertinent part, the treatment records include several references to complaints of chronic low back pain, to include among the general medical conditions listed under Axis III of the Veteran's psychiatric treatment records and a February 2011 VA psychiatric examination.
In short, this reflects the potential presence of the claimed disability, a fact absent when last considered and although a formal diagnosis is not seen, pain can be evidence of a qualifying chronic disability under 38 U.S.C.A. § 1117. This would at least warrant an examination for resolution of this matter. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Shade, supra.
In view of the foregoing, the Board finds the evidence received since the last prior denial of service connection for low back pain was not previously submitted to agency decisionmakers, relates to an unestablished fact necessary to substantiate the claim, is not cumulative nor redundant of the evidence of record at the time of the last prior final denial, and raises a reasonable possibility of substantiating the claim. As such, new and material evidence has been received to reopen the previously denied claim in accord with 38 C.F.R. § 3.156(a), and it is reopened.
As noted in the Introduction, the underlying issue of entitlement to service connection for low back pain is addressed in the REMAND portion of the decision below.
ORDER
New and material evidence having been received, the claim of entitlement to service connection for low back disability is reopened, and to this extent only, the benefit sought on appeal is granted.
REMAND
Initially, the Board observes that the July 2013 Statement of the Case (SOC) notes that the evidence considered includes treatment records from the Saginaw VA Medical Center (VAMC) dated from August 1996 to April 2013, yet the only records available for the Board's review in either the electronic file or paper file are dated from 2005 to 2010. Efforts to associate with the file all other relevant VA treatment records should be made.
Regarding the Veteran's low back and fibromyalgia claims, it is not clear from the current record whether any formal diagnoses have been made regarding these matters. Therefore, a competent medical examination is required to resolve this question.
With respect to the claim of service connection for an acquired psychiatric disorder, to include PTSD, the Board notes the February 2011 examiner did not reconcile his conclusion the Veteran did not have PTSD, with the entries in the treatment records reflecting that diagnosis. This should be accomplished on remand.
In regard to the erectile dysfunction claim, a February 2011 VA examiner indicated the Veteran's current erectile dysfunction was due to over-the-counter medications which the history and other records reflect the Veteran took in 2008, and which resulted in a penile implantation. Significantly, if the Veteran took the medications in 2008 to deal with what ultimately may be symptoms associated with service connected disabilities (being further developed), there would be a case for considering erectile dysfunction as secondary to service connected disability. Thus, the matter is intertwined with the other service connection claims.
Lastly, a medical opinion should be sought addressing whether the constellation of complaints; notably back pain, erectile dysfunction, sleep apnea and herpes contemplate a medically unexplained chronic multi-symptom illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317.
Since the Board has determined that a new examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 addresses the consequences of a veteran's failure to attend scheduled medical examinations. That regulation at (a) provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination, action shall be taken. At (b) it is provided that when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. However, when the examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the claims folder the Veteran's relevant treatment records from the Saginaw VAMC for August 1996 to April 2013 as noted on the July 2013 SOC; and determine if there are any additional VA treatment records for the appeal period, which records should be sought.
2. Request the Veteran identify the names and addresses of all medical care providers who have treated him for his low back pain, fibromyalgia, erectile dysfunction, sleep apnea, herpes, and psychiatric disorder since December 2010, and attempt to obtain copies of the identified records as may not be captured by the VA treatment records obtained in connection with the development undertaken pursuant to paragraph numbered 1.
3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service low back pain, fibromyalgia, erectile dysfunction, sleep apnea, herpes, and psychiatric disorder symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence.
4. After obtaining any additional records to the extent possible, the Veteran should be afforded new examinations to determine the current nature and etiology of his claimed low back pain, fibromyalgia, erectile dysfunction, sleep apnea, herpes, and psychiatric disorder. The claims folder should be made available to the examiners for review before the examinations.
The respective examiners are asked to review the pertinent evidence, including the Veteran's lay assertions regarding his symptomatology, and undertake any indicated studies. Then, based on the results of the examination, the appropriate examiner is asked to address the following questions:
(a) Please state whether the Veteran currently has fibromyalgia.
(b) Please state whether the symptoms of the claimed low back pain is attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve?
(c) Is the Veteran's disability pattern to include low back pain, erectile dysfunction, sleep apnea, and/or herpes consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis.
(d) If, after examining the Veteran and reviewing the claims file, you determine that the Veteran's disability pattern is either (1) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (2) a disease with a clear and specific etiology and diagnosis, then please provide an opinion as to whether it is related to any environmental exposures experienced by the Veteran during service in Southwest Asia.
(e) Is it at least as likely as not (i.e., at least equally probable) that any diagnosed disorder had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of his service, including environmental exposures during service in Southwest Asia during the Persian Gulf War?
(f) If not directly related to service, is any medical condition proximately due to, the result of, or caused by any service-connected disability(ies)?
(g) If not caused by another medical condition, has any disorder been aggravated (made permanently worse or increased in severity) by any service-connected disability(ies)? If yes, was that increase in severity due to the natural progress of the disease?
(h) For the claimed psychiatric disorder, please state whether the Veteran satisfies the DSM criteria for a diagnosis of PTSD. If not, please reconcile that finding with the prior diagnoses in VA treatment records to include records dated in November and December 2010. For any other acquired psychiatric disorder found to be present, the examiner should express an opinion as to whether it is at least as likely as not that it was incurred in or otherwise the result of any in-service disease or injury.
A complete rationale for any opinions expressed should be provided.
5. After completing any additional development deemed necessary, readjudicate the issues on appeal in light of any additional evidence added to the records assembled for appellate review. The decision should reflect consideration of the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental SOC (SSOC), which addresses all of the evidence obtained since these claims were last adjudicated below, and provides an opportunity to respond.
The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs